The Origination Clause Challenge to Obamacare

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

You may also like...

12 Responses

  1. Brett Bellmore says:

    The complete absence of the Origination Clause from modern constitutional thought must mean something other than “The Constitution has been betrayed.”

    Nah, it’s perfectly capable of meaning, “The Constitution has been betrayed.” Unless maybe you’re suggesting that it isn’t possible for the Constitution to be betrayed? Is that the position you want to assert?

    “Second, at what point do reliance interests make invalidating the entire Affordable Care Act inappropriate? ”

    At the same point where reliance interests made enacting it inappropriate?

  2. Brett Bellmore says:

    Anyway, serious question here, which is raised anytime somebody proposes to uphold an unconstitutional law on the basis of “reliance interests”:

    Do Americans have any “reliance interests” in the Constitution being enforced, rather than ignored?

  3. Orin Kerr says:

    If the challengers are correct that the Origination Clause was violated, is the remedy necessarily to strike down the entire law? In the same way that courts do a severability analysis when striking down part of a statute, I wonder if the remedy is narrower than that.

    • Brett Bellmore says:

      IIRC, the ACA lacks a severability clause.

      • Steph Houghton says:

        Orin, A “law” passed in violation of the Origination Clause is no more a “law” than a bill that only passes one house of congress or a “law” that is vetoed by the president and can’t muster a 2/3 vote in each house.

  4. prometheefeu says:


    Americans cannot have a reliance interest in the Origination Clause since it was never enforced.


    I don’t understand your last point. Well, I understand it, but I just didn’t see it in the Roberts opinion.

    • Brett Bellmore says:

      Don’t you think that’s something of a scam? All the federal government has to do to effectively void part of the Constitution is to not violate it for a while, so there’s no record of court cases, and then when it starts violating it, use lack of standing to deny everybody who might complain any opportunity to challenge the violation. And, presto! A part of the Constitution becomes unenforceable because it hasn’t been previously enforced.

      The idea that Americans are simply entitled to have the Constitution obeyed, even if everybody in the government agrees that violating it is ok, seems to be beyond the legal community’s grasp.

  5. prometheefeu says:


    You think maybe only the penalty gets struck down? That would seem sensible.

  6. prometheefeu says:


    I agree that there is an interest in the Constitution being enforced. I am in favor of that happening. But it’s not a reliance interest in this case.

    A reliance interest is something that comes up when something has become a common and expected practice and therefore, people have come to rely upon it. (Ergo the name) The American people have not come to rely upon the Origination Clause being enforced for the simple reason that it has not been enforced so far.

    So there are plenty of good reasons to enforce the Origination Clause (such as: it’s the law) but a reliance interest is not such a reason.

  7. Joe says:

    The Supreme Court has basically treated this as a political question left to legislative branch. Every jot and tittle of the Constitution, especially as applied in various cases, will not be protected by judicial review.

    Political processes, affected by provisions like this in various ways (e.g., it still had to start in the House, to the degree the whole thing was replaced it is can be seen a significant thing that will get some pushback — in part because of explicit text — and the House still has to accept the change … again, they can reject it to honor the Origination Clause … finally, the President still can veto it), often are the only checks. The problem with court review of internal lawmaking here was understood at least back in the 1890s. There is no “betrayal” in all of this imho.

    I agree there are reliance interests that counsel against calling into question major legislation except in compelling cases. The Origination Clause claim is weak. But, Randy Barnett passionately tried other very weak claims in the past in this area to kill the white whale, and even one he himself said had low likelihood of success (the Medicaid ruling) worked out for them in the end. So, you know, why not? That is for that side.

    Your last point is probably more right than not.

  8. Joe says:

    BTW, finished your book on John Bingham. Left wanting a bit more — 190 pages (with photos) — but it was a good read.

  9. Douglas Levene says:

    “[M]y understanding of the Chief Justice’s holding in NFIB v. Sebelius is that five Republican Justices should not invalidate the signature law of the Democratic Party over the objections of four Democratic Justices. That principles covers the Taxing Clause, the Origination Clause, or the Duty of Tonnage Clause.” This is precisely why I don’t think Constitutional Law should be required in law school or taught as a 1L class. It has nothing or little to do with law and much to do with politics.